If there is a better private system, this is not it.

I’m a libertarian because maximizing individual liberty is the primary goal of collective human action. Whatever the means, achieving maximal individual liberty is the end.

The question is, of course, by what means? I’ve toyed with the idea – to be honest, not seriously – of no government. I understand and accept the idea that private processes would develop in the absence of a formalized government. The protection of rights present¹ in our current system of government would largely remain. However, given human nature, there is too great a threat to individual liberty inherent in no formal government. A monopoly on force is dangerous, but no such monopoly is not automatically better for the individual. A government with limited, stated powers designed to protect the rights and liberty of all its citizens is, I believe, the ideal.

That is the ideal. We don’t live in libertopia, though. Such a government must exist with its limited powers explicit and limited only to protecting rights. I use the term collective human action above to express this narrow, rigid concept of legitimate government. We act together specifically so that we may be free from each other generally.

Since a government’s objective is to maximize liberty, I’m interested in minimal restrictions on individuals. The valid test for restricting an individual’s free action is objective, unrequested harm. Where an action causes such harm, a government’s power to restrict the action is legitimate. Beyond that boundary, any government action is a violation of the powers granted to it by its organizers.

(There is a large, important gray area concerning subjective harm. Although it must be explored to develop a complete political philosophy, I leave that discussion alone for my purposes here. It’s pointless to consider the subjective before settling the objective. It is also unnecessary because I wish to consider only objective harm here.)

So, circumcision.

A recent string of Free Talk Live episodes discussed circumcision in the context of how far states should go in preventing child abuse. The show’s hosts generally take an anti-state position, relying instead on the expectation that private systems will fill the void if we dismantle the state. In many cases I’m sympathetic to this view. Particularly with economics and all the ways in which our government seeks to improve our world, the state makes obvious, large mistakes because it must plan rather than rely on ever-changing needs to direct the market. But in matters of protecting rights, I am not sympathetic to this view. The state is a means to protecting rights and achieving individual liberty. This function is necessary in any society, and the properly-constrained state is the least bad option. “Properly constrained” is the key, of course. I do not foresee a private market in force being any more properly constrained than the state yet still undertaking the necessary task of protecting citizens.

From the June 11, 2008 episode (approximately 1:26:45 in):

Mike (Caller): So I think we’ve all agreed that at three or four years old, a child cannot make a rational decision.
Ian: I would certainly agree with you. No doubt about it. And here’s what I would suggest. You should go and live on a piece of property that has deed restrictions or private law, whatever you’d like to call it. You can call it deed restrictions, you can call it private law. Then, you know, in that world of private law, you can construct and create whatever sort of rules you want to as far as the behavior of your neighbors is concerned. And if you want to ban things like mutilation, or hitting children, or whatever it is that you consider anathema to your belief system, it would not be allowed by punishment of whatever it is that you determine the punishment should be.
Mark (Host): And before one moves to that community, they have to agree upon those rules.
Ian: Right. Then you wouldn’t have anyone around you that was doing those awful things and you wouldn’t have to be concerned with it. And then those who wanted to mutilate their children, or whatever, could go and live together in their own little, you know, their own little society.

Being anti-state is the wrong way to approach this issue as a libertarian. Certain rights are inherent and universal to all humans. Do the children in the latter community not have the same rights they’d possess if born in the former community? Children would not choose these community rules as adults would, so the protection of rights become merely the will (or whim) of the strong. Suggesting this as a viable option towards maximizing individual liberty treats children as property. What is it worth to be free of force from the state if you are not free of force from your parents?

Maximizing individual liberty requires limiting an individual’s liberty to the extent that his unfettered actions would infringe on another individual’s liberty. Doing so in that limited manner protects individual rights. We can argue whether the state or some other method is the best way to maximize individual liberty by protecting the rights of all individuals, but there is no valid argument that this should not be the primary goal of any society.

On June 16, 2008, a caller continued the discussion on circumcision (approximately 17:40 in):

Dan (Caller): Hi, Ian. Umm, a couple weeks ago, or maybe it was last week, I’m a podcast listener, so I get times mixed up.
Ian (Host): Okay.
Dan: There was a gentleman who called in, actually, a couple Christians who called in talking about how they don’t want to force their morality on people but, you know, if people are, you know, abusing their kids and you’ve got to do something, you’ve got to have the government around to do something. And I just wanted to submit that in a totally free society where you have, you know, where people have the liberty to basically do what they want as long as they’re not hurting anyone else, you’re still going to have people hurting each other, but it’s no different than today. My point was going to be that, uh, why can’t the kids, if they have a case that they’ve been abused, uh, why can’t they just sue in retrospect?
Ian: They should be able to.

That continued after a commercial with a restatement (approximately 20:04 in):

Dan: Ok, um, I was talking about how there have been some Christian libertarians who have been calling in talking about how, you know, they they just can’t accept the idea that we have to allow everyone full liberty to raise their children how they want to, you know, because, you know, what if, well what if they’re, you know, doing something like, you know, they brought up female circumcision or something like that.
Ian: Yeah.
Dan: And what I was saying is why, you know, the burden of proof should be on the accuser. So why don’t we allow people to do, to, you know, to raise their kids as long as there’s no clear signs of abuse, and if the children are damaged by it, sue in retrospect. That rather than having the burden of proof constantly on the parents so they have to prove to this government that we have constantly that they’re not abusing their children.

Proposing a post facto process for recourse in the event of harm is a no-brainer. (What system of mediation, if not the state’s legal system?) We have a system for this today that covers all sorts of offenses that are also a crime. Obviously harmed individuals have a claim to compensation against those who harmed them. Offering that as a substitute for prohibition avoids the real issue of rights violations. We prohibit certain assaults despite having options for restitution after the assault because protecting the right of every individual to be free from harm is at the core of liberty.

Unfortunately the typical libertarian approach to hypothetical questions seems to revolve around the assaulted being able to pull out his concealed weapon and stop the assault, hence
no need for the state. I exaggerate wildly, even though my hyperbole is useful in hypotheticals because adults have some ability to defend themselves, whether through brains, muscles, or technology. There is merit to the argument of self-defense. But we’re not discussing adults. Many, if not most, minors lack sufficient resources in these defense mechanisms. Infants lack all resources. Yet, as citizens with equal, natural rights, all minors must be treated as more than inconvenient obstacles to extending hypotheticals into real world rules. The notion that children complicate libertarian political philosophy – or worse, that libertarianism does not apply to children – is a failure of application, not the underlying principles of liberty and rights. The reasonable concept of proxy consent matters because parents are the proper decision-makers where necessity demands it, but proxy consent does not matter most. No adult has a legitimate claim to violate those rights merely because he or she is the child’s parent.

Permitting parents to surgically alter the healthy genitals of their (male³) children grants them an illegitimate liberty interest in altering – and harming – the body of another at the expense of his legitimate liberty interest in self-ownership, a right that includes his foreskin. Endorsing that because it precludes state involvement, even with a post facto compensation system in place, turns antipathy for the state into a fetish, at the expense of individual liberty. Being oppressed in private is still oppression.

The debate continues (I’ve omitted an inconsequential bit):

Mark: Ok. Yeah, absolutely true. Umm, I think that, uh, people that have been, you know, harmed by their parents in some way should be able to sue and umm, I would think in the case of a female circumcision that likely they would, uh, you know, a jury would find for them. Umm, male circumcision, maybe not so much. You know, pervasive morality matters in a, in a society, and if you’re going to get a jury of your peers, you know, they’re probably not going to find that you were harmed significantly by a male circumcision. Maybe they will, I’m not sure.

It’s a strange kind of libertarianism that places the “pervasive morality” of the majority before the protection of individual rights and objective standards of harm.

Continuing, with omissions for space:

Ian: You mean Dan’s idea?
Mark: Yeah, Dan’s idea would be, would take care of it relatively quickly because, well, people don’t want to be sued.
Ian: Well, right, because, uh, if there was a judgment against the parents in that particular case then, uh, then the other parents that were considering doing that would have to think twice.
Mark: Absolutely. And of course social ostracization would, uh, keep these types of things from really cropping up within private, voluntary societies so you’d have private arbiters, you’d have parents who, and uh uh and new new parents who would already have signed on to the rules. And, uh, man, if they broke those rules, they would not be able to prosper, and they would be hit pretty hard financially.

There is some merit in this argument, but as it applies to doctors, not parents. That’s already starting in the U.S. It will have more impact as the courts become more sympathetic to the proper inclusion of medical ethics into unnecessary genital cutting.

With parents, we’re back to being stuck with the pervasive morality of the majority at the time of the circumcision, and parents already ignore what their son may or may not want in favor of what they think he wants, or worse, what they want. That misses the point. A male can later make the case that he was harmed, but this solution relies on two faulty assumptions. First, it assumes the male minor’s (obvious) rights aren’t worth protecting while he is a child, perhaps merely because his parents circumcised him rather than a stranger. Their liberty is more equal than his liberty. This can never be correct.

Second, it assumes that money will sufficiently compensate him for his lost foreskin. Not all men would accept that trade-off. Not all parents will be able to fund a judgment against them. And if they don’t expect to have the resources in the future, would the parents be concerned enough about a possible future judgment to not circumcise? Nor will all parents with the financial means to fund a jury’s punishment value the lost dollars more than whatever value they place on the act of circumcising their sons. Remember, all tastes and preferences are subjective. Just as the evaluation of the foreskin’s worth will vary by individual, the evaluation of the worth of a dollar (or a million or a billion) relative to pleasing God/a perceived reduction in HIV risk/avoiding the “ick” factor/etc. will vary by parent(s). There simply is no reliable way to predict what individual’s will do. Incentives matter, but not everyone responds the same way to the same incentives.

This hypothetical system also ignores the extreme cases where the harm to the boy is greater than the typical circumcision outcome. It seems reasonable to suggest that the rare boy who dies from circumcision will not be satisfied by the possibility of money he can’t collect.

We’re left with individual rights as the only defensible guide for what system should be in place. I can’t make this point enough. Every individual, regardless of age, has the same natural rights. An age-based inability to defend one’s own rights does not render those rights subject to the will of another, even a parent. What system will protect those inherent, equal rights? If you value liberty, that is the discussion. If you value only the dismantling of the state, understand what your position entails. Don’t wrap it in talk of liberty and pretend you’ve found an intersection that bypasses the state. You haven’t because compensating the violated after an identifiable, predictable violation rather than protecting before the violation has nothing to do with liberty.

I’ll end with a concise statement of the philosophical consideration at hand, from D.A. Ridgely at Positive Liberty (from a different context):

The quintessentially libertarian position, in any case, is that the burden must fall on the state not before it permits some exercise of individual freedom but before it prohibits it. It is, by contrast, the quintessentially conservative position (of the Burkean variety) that tampering with long established traditions and institutions is so inherently risky that we must apply the social equivalent of the precautionary principle before proceeding.

I’m arguing the quintessential libertarian position. I’m not willing to concede that parents have an absolute right to make medical decisions for their children. Such a right assumes the option to make objectively stupid medical decisions for another. I’m thinking of parents who let their children die while waiting for prayer to save them. Still, parents deserve at least first – and great – deference to their judgment. The burden falls on the state to prove that it may prohibit the circumcision of minors. Where direct medical need is absent, as it is absent in ritual/social circumcision, the objective infliction of harm on the child to achieve subjective benefits valued by the parents, however well-intentioned, is sufficient proof that state prohibition is not only legitimate, but a requirement to protect rights and maximize individual liberty for everyone. Imposing routine/ritual circumcision is not a medical decision, so the decision deserves no deference. Whatever system is in place must recognize that and protect the child. The private system proposed by Free Talk Live is unacceptable because it fails to embrace liberty for all.

¹ Admittedly, our representatives disregard this duty. This is a flaw in e
xecution, not design. But it’s presence in our government is a significant, complicating issue.

² By force, I mean objective harm. The state does not have the constitutional power to cut your genitals at the discretion of its representatives, at least not without due process. (Also, see footnote ¹.)

³ The distinction permitting only the circumcision of male children demonstrates our unprincipled, unequal understanding of the rights of children.

2 thoughts on “If there is a better private system, this is not it.”

  1. Tony –

    Being anti-state is the wrong way to approach this issue as a libertarian. Certain rights are inherent and universal to all humans. Do the children in the latter community not have the same rights they’d possess if born in the former community?

    Whoever argued to that point fell into a pretty typical libertarian trap. Let’s call it the Ron-Paul-Federalism trap; the idea that violations of individual rights are tolerable on small, local scales, just not on large, national scales. The correct answer, is, as you’ve noted, there is never an appropriate time or place to violate someone’s rights.
    How a free market handles these things, is an entirely different argument, but certainly we could make all sorts of hypotheses: an actual free market in medicine, research, pathology, etc., would be more amenable to meaningful research on topics of no political import, even on topics for which there is little profit to be had. Honest, meaningful research would likely influence people in ways that the current government-cartelized medical industry cannot.
    Am I saying that a free market would put an end to what is basically ritual male mutilation? No. But I think there is a strong argument to be made, that the frequency of these activities would likely diminish.

  2. I’m willing to consider possibilities for private systems. I’m skeptical because the American approach to male genital mutilation began without government interference, but I won’t pretend that such a system that actually protects people is possible without government. I try to remember to be at least a bit skeptical of my own ideas.
    Your summary of the referenced podcast is exactly the way it was. As another example, I’m listening now to a recent episode of Free Talk Live. The host, Ian, opened the show advocating for ending the prohibition on child prostitution as a way to reduce sexual violence against children. The quality of any consent was glossed over and the entire point that the liberty of the child (usually girls) mattered. As long as the state didn’t restrict the adult’s “liberty” to get sexual release with a child, then ending prohibition is a good result. As I mentioned above, that’s turning antipathy for the state into a fetish, not respecting liberty for all.

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